April 7, 2010

Let's face it: This is a radioactive subject. As Jeff Shesol, author of the critically acclaimed new book Supreme Power, puts it, "religion is the third rail of Supreme Court politics. It's not something that's talked about in polite company." And although Shesol notes that privately a lot of people remark about the surprising fact that there are so many Catholics on the Supreme Court, this is not a subject that people openly discuss.

Professor Mark Scarberry at Pepperdine law school, a self-described evangelical Protestant, says there should be no religious test for appointment.

"But I don't think that that means that a president shouldn't pay at least some attention to religious diversity on the court," he said. "It does seem to me that when you have such a large part of the country that has a particular sort of religious worldview, if there is no one on the court who is able to understand that worldview in a sympathetic way, then that creates difficulties."

I think that since we talk about the race/ethnicity and sex of the Supreme Court nominees, we should talk about religious affiliation. Religion is an even more important aspect of diversity, since it resides in the human mind, and it is the mind that will be making the decisions that bind us. (Is it Protestant of me to think that religion resides in the human mind?)

It's odd how the problem has gone without notice until we are at the point where the Supreme Court will be composed entirely of Catholic and Jewish Justices. It does seem quite wrong to look at the short list of potential nominees and disqualify the very impressive candidates who are not Protestant. That seems like outright discrimination. But why is giving preference to a Protestant any different from going after a female/Hispanic candidate, as President Obama did with the last appointment?

This'll be fun. I'm sure President Obama and Senate Democrats would like to avoid confirmation hearings, but if Stevens is done, Stevens is done. He shouldn't stick around because it would be politically inconveninet if he were to end his service this year.

Should there be a vacancy, maybe President Obama will try a novel approach (at least novel to him) and pick the person that fits his notion of what makes a qualified justice (because elections matter, his definition is what matters, even when it is likely to deviate greatly from my personal preference), and forget all the other box-ticking nonsense as far as creed, ethnicity, or orientation.

Especially if they studied those 60s-70s era Vatican II documents and post-conciliar encyclicals with all that social justice stuff that so riles Glenn Beck. Lotsa human dignity positive rights crap in there. Very communitarian and social obligation and we are the world so let's all drink a coke and hold hands.

I come from a long line of hard right Baptists from the South. My family members went to Bob Jones. I have never heard anyone ever say a word about how many Protestants are on the Court. I hear a lot of love for Scalia and, to a lesser extent, Roberts and Alito.

========================I think another Catholic or Jew would be politically difficult. Especially a Jew, which would make Jews 1,300% more ovverepresented on SCOTUS than their percent of actual population. A 7th Catholic would mean they were 75-80% overrepresented...if you count all the illegal aliens/

Especially if they studied those 60s-70s era Vatican II documents and post-conciliar encyclicals with all that social justice stuff that so riles Glenn Beck. Lotsa human dignity positive rights crap in there. Very communitarian and social obligation and we are the world so let's all drink a coke and hold hands.

KentuckyLiz - I find that Catholics have more in common with Marxism then anyone is willing to admit. There's a real synergy there.

Liberals believe in social justice (as they define it). This belief trumps the tenets of all known religions. No matter where he goes on Sunday, the true and abiding faith of any justice Obama appoints will be fundamental liberalism.

Too bad they can't find someone who is just a first-rate legal mind, rather than having to pick from what's left after passing through the 17 Official Filters of Postmodernism, including the always-popular Race Colander and the indispensable Gender Sieve.

Alex--but Catholic teaching doesn't prescribe any particular economic or political system. One can always have an opinion whether the social teaching should be accomplished by one's own voluntary charitable acts, or whether it's mandating a government program. There are economic and political conservative Catholics as well as leftist Catholics. It's a big tent.

Paul--the mainlines are dying, the growing lines are non-Reformation in origin, evangelical and pentecostal. I know the provenance of the several tens of thousands of denominations and have an interesting reference work for that purpose. There are post-Protestant non-Catholic Christians who do NOT want to be referred to as Protestant. They will deny it vociferously. More common than you know.

Well since most mainline Protestant churches tend to be more Progressive Humanist than they are Christian Fundamentalist, what's the difference between appointing an Presbyterian and someone like Laurence Tribe?

That this is an actual discussion is a disgrace. Any justice's religion should not even be up for debate. I'd say this is the result of the Lefties' continual efforts to divide the American people along every line possible, but that would be dishonest.

A lot of conservative Protestants obsessed about this for most of the 20th Century. If Jack Kennedy were one tenth the man people wanted to believe he was, he would have told Norman Vincent Peale and his Inquisition to to get fucked. And Romney should have done the same two years ago.

Michael Hasenstab said...

There are no military veterans on the supreme court. Shouldn't the next nominee be a vet?

No matter how you dance around it, you either have an informal quota or you don't. By it's nature it's discriminatory and unfair. If Protestants or Atheists or Zoroastrians want represented on the court then strive for the position. That goes for sex and race too.

Or just accept that justice in not blind, we like to peak out from under the blindfold just to be sure we're not being too fair.

If religious depth is actually a factor, then the best qualified nominee is John Ashcroft. His appointment will have to wait until January 2013.His Christian faith is the brand that scares the establishment, both Catholic and Reformed tradition protestant, but it is the fastest growing one and the only truely racially integrated one.Now are you having a panic attack yet?

Given that in my time I've known idiots, smart cookies, assholes and fair-minded people of pretty much every religion, I'd fervently wish the religion part not become yet another focus of litmus testing over which to endlessly argue, with decreasing benefit to all involved.

Given that I know wishin' ain't gettin', better that I excavate my own brains with a hand drill and cut out my tongue with a serrated butter knife than enter this discussion beyond posting this comment.

When it comes to decidin' right from wrong, I likes me a good religious Jew. Not one of them watered-down American lefty types either. Import one fresh from the holy land. A canary may have some important news to bring to the court.

Rick...that is a protestant's weak point: believing that correct doctrine is the same as faithfullness in relationships with the God Head and with the other Christians. It does keep cults at bay, but accepting people as the are is a commandment. Teaching them good doctrine comes in a weak third later. Episcopalians are usually easy to have as friends no matter what the doctrines of the people are.

What's the big deal about looking for a Protestant nomninee? There was a Jewish seat and a Catholic seat on the Supreme Court decades before the idea took hold that the Court's composition should be "representative" of America

The Protestant Reformation freed the heavy hand of Secular/Religious combinations that supported divine right Kings and functioned as a UN like authority that all kings submitted to under a feeling that there must be God's rule over the kings. Needless to say the Kings and Church ruled as if needing one another.Today that is the European Union's role. All legalistic religious systems function by first declaring that Everything is illegal, until the priests issue a ruling allowing it specially to be done. It works to create social order, but it is not a part of the American Tradition. We were born and bred in a Calvinistic Protestant culture that saw Catholics as an armed terrorist group, which the Catholics had earned. The Scots Irish Presbyterians and Puritan English never allowed any ruling from a high priesthood, rather all things were voted upon. The young Pilgrims came here on the Mayflower and did that quite successfully. They were the first Tea Partiers.

Nina Totenberg: "Let's face it: This is a radioactive subject. As Jeff Shesol, author of the critically acclaimed new book Supreme Power, puts it, "religion is the third rail of Supreme Court politics."

This is utter balony. The subject is only radioactive to Totenberg because she worries herself sick about abortion being over-turned but most Americans (and even most members of the commetariat) don't talk about it because they really don't think it's much of an issue, not because it's "radioactive."

This story is a prime example of an over-wrought reporter elevating her personal fears into what she imagines is a nationally suppressed issue.

Please don't start this conversation... because the inevitable conclusion will be somebody who will insist on a Muslim for the sake of diversity (but totally forget about the Buddhist, Shintoists, and Flyingspagetimonsterists.)

People who focus on the diversity component of such a small court cannot create parity among groups once one considers the infinite ways that people can differ from one and other.

So, I prefer to stick to the more traditional approach; Disagree with me and you are dumb and/or evil.

I'm an evangelical Protestant and generally disagree with Mr. Obama on most issues. Nevertheless, I hope the President appoints the *best* nominee irrespective of his/her background. I would likely tend to agree with an evangelical on most issues, but a having a judge who is an evangelical ensures neither competence nor rulings that I would find correct.

(I write this even though I suspect Prof. Althouse's post was tongue-in-cheek.)

Also: First time ever posting a comment on a public blog--go easy on me.

As I think Snively suggests, there are protestants out there who do not view their denomination as insignificantly as non-protestants sometimes appear to do and they are also not necessarily aligned with big box evangelical christian world-views.

I would like to see a nominee with with stellar legal credentials from a mainline protestant denomination whose faith is informed by Reinhold Niebuhr.

That said I am most likely to align myself with someone whose beliefs (in any religion or its absence) focus on understanding the complexity of the human condition and on coaxing from us the better aspects of our nature.

I think if religion/belief is to be an issue the quality of a nominee's beliefs rather than the name of the belief system is the more relevant, if more difficult, thing evaluate.

The sharp nail in all discussions of this type is the definition of "coax" and--particularly in the minds of those who would do the coaxing--what boundaries separate "coax" from, for example, "compel."

The boundary between persuasion and force, yes I too think it is, at the margin, difficult. It is also unavoidable. Remember the Aesop's fable of the sun and the wind competing to see who could get a man to remove his hat? It's funny and true that something that can be explained clearly to children can also be something that, in detail, defies the limits of adult comprehension.